Joy v. City of Terrell

• Decision Date: 13 May 1911
• Citation: 138 S.W. 213
• Parties: JOY et al. v. CITY OF TERRELL et al.
• Court: Texas Court of Appeals

138 S.W. 213

JOY et al. v. CITY OF TERRELL et al.

Court of Civil Appeals of Texas. Dallas.

May 13, 1911.

Rehearing Denied June 3, 1911.

Error from District Court, Kaufman County; F. L. Hawkins, Judge.

Action by M. A. Joy and others against the City of Terrell and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

William Thompson and Lively, Nelms & Adams, for plaintiffs in error. Bond & Bond, for defendants in error.

TALBOT, J.

This action was brought by M. A. Joy and the Terrell Electric Light Company against the city of Terrell and the executive officers of said city, alleging, in substance, that the city of Terrell is a municipal corporation chartered and acting under the general laws of the state of Texas as set forth in title 18 of her Revised Civil Statutes; that the plaintiffs M. A. Joy and the Terrell Electric Light Company resided in said city of Terrell, and are property owners and taxpayers therein; that said city of Terrell for certain valuable considerations by a valid ordinance granted to plaintiff the Terrell Electric Light Company a franchise authorizing it to erect and operate an electric light plant in said city of Terrell; that plaintiff complied in all things with the provisions of said ordinance, and that the same became and was a contract by and between the city of Terrell and the plaintiff the Terrell Electric Light Company, by reason of which said company was induced to and did erect, at an expense of $25,000, an electric light plant in said city of Terrell for the use and convenience of said city and the inhabitants thereof. Plaintiffs further allege that the defendants, acting through the city council, procured the submission to the voters of said city of a proposition to erect by and at the expense of said city an electric light plant, said plant to be used for the purpose of lighting said city, and for the further purpose of engaging in the commercial enterprise of selling light, heat, and power to the citizens of said city and other persons for use in their private residences and places of business; that the defendants threatened to expend large sums of money of the city and other funds wholly derived from taxation of plaintiffs' and other citizens of said city of Terrell's property in the purchase of material, poles, wire, and machinery and appliances for the purpose of establishing a light, power, and heating system for the purpose of furnishing incandescent and other lights and power and heat to certain citizens of said city to be used in their private houses, and for the benefit of other private citizens; that defendants were without authority of law to engage in the commercial business of furnishing lights or power or heat to private individuals and companies to be used in their private business, either for pay or as a gratuity, and that the erection of said plant for said purpose was without authority of law, and was ultra vires and void, and in contravention and violation of the laws and Constitution of this state and of the charter under which said city of Terrell was operating; that it would be inequitable and unjust for the defendant, the city of Terrell, after having by its franchise and ordinance pleaded induced plaintiff to expend large sums of money in the erection and maintenance of the electric light and power plant in said city of Terrell and the acceptance of said grant to supply the needs of said city and its citizens, to tax the property of this plaintiff for the support of an electric light, power, and heating plant furnishing commercial light, power, and heat in competition with this plaintiff, and prayed for the issuance of a temporary restraining order against the defendants, and that upon a final hearing the same be made permanent. The defendants answered said petition, and by their first amended original answer demurred generally and specially to said petition, and upon a hearing the court sustained their general demurrer, and, the plaintiffs declining to amend, the cause was dismissed. From this judgment the plaintiffs prosecute this writ of error and complain of the court's action in sustaining the defendants' general demurrer to their petition.

There was no error, we think, in this action of the court. The facts set forth in the petition of the plaintiffs in error, who will hereafter be referred to as plaintiffs, did not entitle them to the relief sought. That the city of Terrell had granted to plaintiffs a franchise to furnish the inhabitants thereof with light did not preclude the city on the theory that such action would impair the obligation of its contract with plaintiffs, or, in view of such contract, would be inequitable, from granting a similar right to another or from exercising the right itself. The franchise of plaintiff...